Parked longer than the maximum period allowed

Brucella

I have searched the forum but failed to find an answer to this query, so apologies if I have missed it.

I am being pursued as Keeper by Euro Car Parks as the vehicle is alleged to have overstayed the 2.5hrs maximum period in a free car park. In other words, no payment is required but one is only allowed to park for a limited period. The number plate was captured on ANPR with a period of 3hrs 2mins.

My PCN was a Notice to Keeper and contained reference to PoFA. I appealed to Euro using your template but this was rejected and I have a POPLA code.

I was planning to appeal to POPLA using the defence that the NtK arrived outside the 14day limit.

My specific question is that does PoFA Schedule 4 apply as it states:

a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and
(b) those charges have not been paid in full.

Is this, or any other such issue cause me a problem? If so, what is my alternative approach?

With thanks .

Fruitcake

The PoFA does not apply to the driver, so what the driver did or didn't do is irrelevant.

Use all the points available to you from post 3 of the NEWBIES, making non-PoFA complaint NTK point 1.

Get pics of the site and signage as soon as you can to include in the inadequate signage point.

How late was the NTK? Some PoPLA assessors can't count or don't know the difference between days and working days, so if the NTK is only a day late you may need to spell it out starting from the date of the alleged event being day zero.

Redx

A Keeper based appeal is usually best , especially if they failed pofa

If there was no windscreen ticket then the PCN had to arrive by day 15 following the incident , where incident day is day zero

If they failed the target date then the keeper has no liability , no matter what the driver did

Count the days from incident date to issue date and to arrival date , more than 14 and they failed , giving you a golden ticket , this is definitely covered in the Newbies FAQ sticky thread

See post #3 of the newbies thread and construct your own popla appeal , based on

Pofa 2012 failures
No landowner authority
Poor and inadequate signage
Any BPA Cop failures

Etc

The driver may be culpable , but if they failed POFA then the Keeper doesn't care , snooze and they lose

Brucella

Thank you for your speedy advice which I will follow.

The alleged incident was on 15th August and the date it was sent was 30th August. That was a Friday so the assumed two working days for mail takes us to 3rd September.

However, to confirm, are you asserting that PoFA Schedule 4 applies in the case where there is no parking fee despite it stating that it applies where a fee is owing. Or am I missing something?

With grateful thanks

Redx

POFA applies if the parking company wish to hold the keeper liable

Payment or non payment by the driver is irrelevant

POFA is not mandatory , but they need to follow POFA if they want to hold a keeper to account , regardless of who was driving

If they fail POFA , as in this case , then that is the major appeal point , but add the other points in as well , just in case

Ralph-y

where was this dastardly deed ..... retail park? rail station ... supermarket?


Ralph:cool:

Brucella

It was a large retail park with several major shops like Next and Laura Ashley. 2.5 hours was a very short limit to do justice to all the shops and perhaps have some lunch. The driver didn't notice the signs and assumed that as it was free parking, there was no limit or at least a 3 hour limit.

I have approached the retailers and the landlord (a property firm) without luck.

The problem is that it is far from where we live so I won't be able to get photos of the signs, including the ANPR notices

Redx

Name the retail park and location

Follow the advice given and draft your popla appeal based on no keeper liability etc

If the popla appeal is successful , the backstory is irrelevant , so it seems that you have been handed the golden ticket get out of jail free card

Brucella

Solent Retail Park, Havant Hampshire

Many thanks for the moral support as well as great advice.
I really thank all of you and this forum

Fruitcake

Brucella wrote: »

Thank you for your speedy advice which I will follow.

The alleged incident was on 15th August and the date it was sent was 30th August. That was a Friday so the assumed two working days for mail takes us to 3rd September.

However, to confirm, are you asserting that PoFA Schedule 4 applies in the case where there is no parking fee despite it stating that it applies where a fee is owing. Or am I missing something?

With grateful thanks

The NTK was sent on day 15 so it failed the strict requirements of the PoFA 2012 before it left the PPC's office and therefore the keeper cannot be held liable, and the driver can only be held liable if they know who it is.
This is why the driver's identity must never be revealed.

Brucella

I would be most grateful for comments, additions or criticisms before I lodge my appeal to POPLA. I think that all the necessary info is included for you to form an opinion:

====


Dear Adjudicator
Parking operator: Euro Car Parks
POPLA Ref: xxxxxx
PCN no: xxxxxx
Vehicle Registration Mark: xxxxxx
Car Park: Solent Retail Park Havant Car Park 1

I wish to appeal the imposition of a parking charge received from Euro Car Parks. The grounds for my appeal are in summary:
1) I am being charged as Registered Keeper of the vehicle but the Notice to Keeper was not compliant with the Protections of Freedoms Act 2012
2) I assert that Euro Car Parks has not demonstrated that it has the authority to impose such a charge on behalf of the landowner
3) The signage was inadequate and not compliant with the BPA Code of Practice
4) The vehicle was parked in a ‘free’ car park but it is alleged that it was parked for longer than the maximum period allowed but no evidence to prove this has been provided
Failure to comply with the Protections of Freedoms Act 2012
I have been informed that under the terms of the Protection Of Freedoms Act 2012 (PoFA) they have the right to recover the parking charge from the Registered Keeper as they do not know who the driver was at the time of the alleged infringement. However, they have failed to comply with the requirements of Schedule 4 of PoFA namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by paragraph 9 (4) of the Schedule.
The alleged parking contravention occurred on 15th August 2019, the date of the issue of the notice is stated to be 30th August. The date of the notice being 'given' (i.e., delivered) is assumed by PoFA to be the second working day after the date of posting. This puts it on 3rd September. The 14 day notice period begins on 16th August (day 1) and day 14 of the notice period is therefore 29th August. Indeed, the Parking Charge Notice was not issue until after the 14 day period had expired.
They cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper. There is no legal requirement to name the driver at the time and I will not be doing so.

No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement

The signage was inadequate and not compliant with the BPA Code of Practice
[I am unable to travel to the car park to check the signs or take photos. Is there any generic text to put the onus on the operator to prove the signs were compliant?]

Inadequate evidence that the vehicle was parked longer than the maximum period allowed
The Notice to Keeper include two photos of the number plate only, which were not time stamped. Only annotated captions below the photos with the words ‘Entry’, ‘Exit’ with a time and a date are shown. They are clearly separate captions as they are placed at different distances below each image.
The BPA Code of Practice states that:
When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.
The photographs provided in the Notice to Keeper do not provide evidence that the vehicle was parked in an unauthorised way as they are merely photographs of a number plate. Furthermore, a date and time stamp are not included on the photograph, but added manually as a caption below the photograph. The photograph is therefore not time stamped automatically by the ANPR camera, there is no ‘audit trail’ to the date and time and there is no evidence that the time and date are correct.

I therefore respectfully request that you allow my appeal